Last week, a mega-lawsuit consisting of thousands of former NFL players who suffered concussions and other head trauma in their playing days was filed against the NFL, teeing up a potentially costly case for the scandal-plagued sport.
Labor and law professor Michael LeRoy is an expert in collective bargaining and the author of a legal casebook titled “Collective Bargaining in Sports and Entertainment.” In an interview with News Bureau business and law editor Phil Ciciora, he discusses the league’s potential legal liability.
Does this lawsuit have any merit, or is it simply an attempt by former players to extract more money from a sport that is currently awash in cash?
Even if the players have a financial motivation, the fact that there is more evidence of long-term harm caused by concussions is reason enough for players to consider litigation. If one were to look for an ulterior motive, I would note that in the most recent round of negotiations with the NFL (including a trip through federal court), retirees found that their interests were subordinated to the interests of active players. So retiree benefits were substantially improved, but their bargaining demands were not met.
Generally speaking, how successful are lawsuits from ex-employees seeking damages from former employers?
It depends. Often, these lawsuits are framed as torts, and this body of law subdivides into negligent and intentional wrongs. However, many of these actions are precluded because another law – worker’s compensation – provides an injured employee an exclusive remedy. So an actual lawsuit by a former employee to recover damages from a workplace injury is relatively uncommon.
Does the fact that the former players were once covered by a labor agreement mean anything for their lawsuits?
Yes, it does. About 10 years ago, Korey Stringer, an offensive lineman for the Minnesota Vikings, died of heat exhaustion during an ill-advised summer practice with his team. His wife sued the Vikings, the NFL and equipment makers for damages. Most of the lawsuit was dismissed because player safety and medical assistance are subjects that the NFL and players bargained. In effect, the court ruled that the only type of action was a grievance that might go to arbitration – but again, this was not a suitable subject for courts. This type of reasoning could come into play again.
What is the most likely outcome? After the recent scandal involving bounties, do you foresee a quick cash settlement from the league to make this new black eye go away?
The NFL will not likely see any connection between the bounty scandal and these lawsuits, even if fans recognized that aggressive or illegal play may be a reason for long-term mental disabilities. So, no, I don’t expect a quick settlement.
More to the point, the burden is on the players to prove by a preponderance of evidence that football-related activities led to their mental decline. Hypothetically, some of the plaintiffs may have taken a punch to the head; or in a more benign way, they may have had dietary or hereditary factors that led to their mental decline. There are many people who never take a hit to the head, but still develop these types of health problems. All of this means that the NFL is not going to be motivated to settle soon.
If the courts were to rule in favor of the players, what ramifications would that have for professional football as it is currently played, if any? Would we see, say, the elimination of the 3-point stance, or some other radical changes to reduce the chances of injury?
It would depend on the findings of fact, and also the amount of damages. It is possible that a court could rule that the NFL was negligent, but contributed only to a small percentage of the causation of the injury. A small award might not change much – and keep in mind, the NFL now has a very protective head-injury policy in place.
But in the realm of anything-is-possible, there might be a huge award. In this extreme situation, one could imagine the NFL would consider doing away with hard helmets, thereby making the game much less violent by forcing players into a more passive style of play.
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